Haroon-ur-Rehman Vs Government of Khyber Pakhtunkhwa through Health Secretary and others

JUDGUEITT SHEET

IN THE PESIIAUIAR HIGH COURT,

BANIIU BEITCH

(Judicial Department)

WP No.350-B of 2

Haroon-ur-Rashid Vs Government of Khyber Pakhtunkhwa through Secretary, Health Department, Peshawar etc.

JUDGMENT

Date of hearing: 21.09.2023

For Petitioner(s): Mr. Masood Iobal Kh attak Advocate For respondent(s): Mr, Umer Oawum Khan , A.A.G.

Dr. Khurshid labal. J.-

1.The petitioner contends that he was appointed through initial recruitment as a Clinical Technician (Anesthesia) (BPS-12) vide appointment order, dated 23.08.2021, issued by the respondent No.3. The respondent, he added, then, posted him against a vacant post in Type-D Hospital, Kakki vide order, dated W 02.09.2021. Further contends that in pursuance whereof, he submitted arrival report and started performing duties w.e.f 02.09.2021, but subsequently, the respondent, without giving him an opportunity of being heard, cancelled his appointment order vide the impugned order, dated 17.09.2021, which being illegal, is liable to be declared as void ab-initio.

2.In their comments, the respondents pleaded that owing to a mistake occurred in calculating the interview marks, the petitioner had figured on top of the merit list and for this reason, he was issued the appointment order.

However, subsequently, the candidate, second in the merit list-Niaz Ali Khan-pointed out the mistake which they accordingly corrected. As a result, the petitioner came down to second position, while the said Niaz Ali Khan moved to the top of the merit list and he was accordingly appointed. Thus, the impugned withdrawal of appointment order, dated 17.09.2021, was passed. To support their contention, the respondents referred to and produced the photocopies of circular letters issued by the Govemment of Khyber Pakhtunkhwa, Establishment and Administration Department (then Govemment of N.-W.F.P, Services & General Administration Department), contained on page- 39 to 43 of the Establishment Code Khyber Pakhtunkhwa (Revised Mition) 2011. They also produced the final merit list duly signed by the chairman and the members of the selection committee.

3.We have heard Mr. Masood Iqbal Khattak, Advocate for the petitioner and Mr. Umer Qayyrm Khan, W A.A.G. on behalf of the respondents and perused the record.

4.Record shows that a total of 100 marks were allocated for the purpose. The prescribed qualification carried 70 marks, higher qualification 12 marks, and l0 and 08 marks were respectively allocated for experience and interview. Based on their academic qualifications, both the petitioner and Niaz Ali Khan secured 70 marks each. However, the latter was awarded 04 marks for his experience, making his total as 74 as against the total 70 ofthe petitioner.

5.Three interviewers were to assess candidates, each having 10 maximum marks. The individually awarded

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marks were to be added and divided by 3 to calculate the total marks of interview. The petitioner was awarded 08 marks each by the two and 07 by the third interviewer (total 23). In the same manner, Niaz Ali Khan was awarded 6,4, and 3 marks (total 13) by each interviewer.

According to the formula, the total interview marks of the petitioner are (23/3:7.66) and of Niaz Ali Khan as (13/34.3). The grand total-subtotal * interview-came out to be as under:

Petitioner: 70+7.66:77.66 Niaz Ali Khan: 74++.33:79.33

6.However, in the final merit list, their respective grand total marks obtained were mistakenly shown as 78 (instead of 77.66) ofthe petitioner and 77 (instead of 78.3) of Niaz Ali Khan. The mistake is thus obvious on the face of the record. The respondents were, therefore, left with no other option, but to correct the same.

7.The learned counsel accentuated that the appointment has created a vested right in the petitioner.

k There could be no escaping from the fact that the marks of the interview were mistakenly or inadvertently calculated. This point was elaborately explained by this Court in Sheema Akhtar v. Governmen t of Khvber Pakhtunkhwa (2018 PLC(CS)N 9l Peshawar, wherein a candidate had obtained 15.57 marks and after rounding off figure, those were taken as 16 marks, but were wrongly calculated as 18. The mistake was subsequently corrected by the Public Service Commission. Consequently, the candidate came down in the revised merit list and respondent was recommended for appointment. The changed position was challenged by the candidate before this Court. However, the Court held

that any order which was wrong on the face of it had no legal force and the same could be recalled, rescinded and withdrawn subsequently even if it was acted upon. The relevant part ofthe judgment reads:

7 . From the perusal of record it is an admitted position that petitioner obtained 15.57 marks and after rounding off figure it actually were to be calculated as 16 marks but were wrongly calculated as 15.57:18 so calculation was either mistakenly or inadvertently made as I 8 instead of 16 which was subsequently corrected by the Public Service Commission after having notice of this mistake, and on the basis of revised merit list petitioner came down in merit order less than respondent No.6 Mst. Bibi Hameeda who has been recommended for the post of female lecturer in Urdu from Chinal, falling in Zone-3.

8.So far as contention of the petitioner that after her recommendation by the Public Service Commission and thereafter appointment order she joined her duty so valuable rights had been accrued to her which cannot be taken back is concemed, suffice it to say that any order which is wrong on the face of it and has no legal force even if it is acted upon, can be recalled, rescinded and withdrawn by any subsequent order by the concerned authority. In this respect wisdom is derived from the judgment of Honourable Supreme Court of Pakistan in case titled Shahid Masood Nadeem v. DY. C.A.F. Lahore Cantt: and 03 others, the relevant principal enunciated in the cited judgment is reproduced as below:

"It is settled proposition of law that no right can be claimed on

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the basis an illegal order and such an order despite having taken effect, neither would change its stafus, nor create any right enforceable in law and in the light of principle that the authority which possess the power of passing an order is also empowered to vary, amend or rescued, the said order can be undone with no legal bar. However, in case of a legal order, this power can only be exercised till a deceive step is taken to give effect to the order and once the order is giving effect, the authority would loose the power to retrace its steps. The result is that a legal order which creates some right in favour of a person, on taking effect cannot be withdrawn, rescinded or varied to the disadvantage of the said person but an order which has no legal force even if is acted upon can be recalled, rescinded and withdrawn at any subsequent stage and thus principle embodied in Section 2l of the General Classes Act, 1956 cannot be made applicable equally to all legal and illegal orders. There is a distinction in the benefit derived under a legal order which is recognized in law as a legal right whereas the benefit arising out of an illegal order cannot be given such recognition."

9.In view of above discussion, the Public Service Commission was left with no option but to correct the mistake in calculation while rounding of 15.57 and her recommendation and appointment order was correctly withdrawn. So

respondent No.6 being higher in merit than petitioner was rightly recommended by respondents Nos.3 and 4 vide impugned letter No. PSC/SR-VIV004646 dated 22.01.2016. Hence, the instant petition being bereft of merit is dismissed.

(Note: the original book 2018 PLC(CS) Note was containing only the head notes of the Law Reporter, so the original judgment was accessed on the Pakistan Law Site i.e. www.pakistanlawsite.com).

8.Leamed counsel for the petitioner produced Insoec tor General of Police. Oue tta and another v. Fida Muhammad and others (2022 SCMR 1583) and Oaiser and others v. Government ofKhvber Pakhtunkhwa throush Sec Health and others (2022 PLC(CS) 478 Peshawar) and submitted that the withdrawal of the appointrnent order without notice is not only violative of the principles of natural justice, but also against the doctrine of locus poenitentiae. We have carefully gone through the judgments produced by the learned counsel. In our view, both the cases do not apply to the facts and circumstances of the present case for having distinguishing features on facts as well as law. In the former case, appointment letters were cancelled through an omnibus order which the employees assailed before the Balochistan Service Tribunal. It reversed those orders and reinstated the employees. On appeal, the Supreme Court maintained the judgment of the Service Tribunal and held the omnibus order to be against the principles of natural justice, locus poenitentiae, and the doctrine of vested right, besides being illegal. As in that case, the appointment order was cancelled without disclosing any reason, whereas, in this case, a specific reason has been

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given. Similarly, in the latter case, petitioners were appointed whose appointment orders were subsequently withdrawn. The employees, then, petitioned before this Court and consequently, the orders impugned were set aside. In that case, political pressure was eminent which pressurized the competent authority to withdraw the appointment orders. In this respect, para-5 of the judgment is worth perusal. In the instant case, no political pressure is eminent. The appointrnent order has been withdrawn as a result of a mistake occurred in calculation of marks. Therefore, neither of the judgments produced is of any help to the petitioner.

9.The locus poenitentiae is the power of receding till a decisive step is taken. However, it is not a principle of law that an order once passed becomes irrevocable or past and closed transaction. Rather, if the very order passed is illegal then perpetual rights cannot be gained on the basis of such an order. Under this doctrine, the authority empowered to pass a particular order is equally empowered to set aside, modifu or vary that order. However, this power is subject to the condition that if such an order has been acted upon which created a right in favour of the beneficiary then it cannot be so set aside, modified or varied to deprive the person of the said right. The creation of a vested right under this doctrine must have been justified by any provision of law, rule or policy. In the absence of any such justification, the benefit extended cannot be termed to be a right created within the meaning of this doctrine. As noted above, the petitioner was in fact on second position in the merit list, but he was wrongly shown on the top as a result of an error and that very enor deprived the top candidate ofhis

vested right to appointment, therefore, neither the doctrine of locus poenitentiae, nor the vested right attacted to the compelling circumstances of the present case. We are unable to hold that an order which has no legal basis or is founded upon an error would create a vested right in favour of the beneficiary. In Engineer-in- Chief Branch throush ministry of Defence, Rawalpindi and others v. Jallal-ud-Din (PLD 1992 SC 207), the Supreme Court observed:

The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-II, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case.

10.Similarly, in Muhammad Feroz v. Deputv Director Education etc (2005 SCMR 1490), a person was mistakenly appointed as a Primary School Teacher against a post for which he lacked the requisite qualification. In this case, the Supreme Court held:

We are not persuaded to agree with leamed Advocate Supreme Court on behalf of the petitioner that after having appointed, the service of the petitioner could not have been terminated on the principle of locus poenitentiae because the said principle can only be pressed into service to protect the legal rights based on lawful orders.

11.In these facts and circumstances, the contention of leamed counsel for the petitioner regarding non- adhefence to the principle of natural justice is repelled'

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The reason simply is that no legal right had been accrued in favour of the petitioner on the touchston e of locus poenitentiae doctrine since the very appointment was based upon an erroneous calculation that deprived another candidate of his vested right to appointment. We may observe that the principle of natural justice does not become applicable unless prejudice is caused to a person in respect of his vested right gained in a lawful manner.

12.The leamed A.A.G produced a photocopy of a report ofan inquiry conducted under the chairmanship of Additional Deputy Commissioner with Assistant Commissioner, Bannu as a member. It shows a range of illegalities to have been committed by the respondents in making the appointments. It also shows that Niaz Ali Khan, despite being eligible in all respects, was rejected and instead, the petitioner was appointed against the subject post. Leamed counsel for the petitioner raised objection qua the findings made by the inquiry committee in respect of the appointment of the petitioner and submitted that since no opportunity of hearing was provided to the petitioner, therefore, the findings are liable to be rejected being violative of the principles of natural justice. The objection is not tenable. The reason is that the inquiry committee was to probe the illegalities committed in appointments by the respondents and in that, it recommended the initiation of a high level inquiry to fix responsibility. It implies that the inquiry was in fact conducted to unearth the illegalities and that's why it recommended for initiation of an inquiry against the officers responsible for committing such illegalities. This is completely concomitant with the service jurisprudence and does not prejudice any vested right ofthe petitioner.

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13.For the aforesaid reasons, we see no force in this petition. It is therefore dismissed in limine. Announced

(Ghafoor Zaman)

JUDGE

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(D.B)

Hon'ble Mr. Justice Fazal Subhan Hon'ble Mr. Justice Dr. Khunhid Iqbal